DWI Defense in Missouri

In Missouri there is what is called an "Implied Consent" law. Currently, everyone who operates a motor vehicle within the state impliedly consents to giving a blood, breath, saliva or urine sample to determine the alcohol content of their blood if arrested upon reasonable grounds to believe they were driving a motor vehicle while in an intoxicated or drugged condition. Under the law, the police may require you to take two tests these can be the same type of test, example two breath tests, or two different tests one breath and one blood. If you refuse either, there are ramifications.

A Lawful Stop is Not Required

In February of 1999, the Missouri Supreme Court held that the state is not required to prove that the police officer lawfully stopped the motorist in order to suspend or revoke a driver's license under the administrative suspension/revocation laws. Once stopped, if the police determine that there is reasonable grounds to believe you are intoxicated, and arrest you, you must submit to a chemical test to determine the alcohol content of your blood, If you test over the legal limit (.08%) or refuse the test, your license will then be suspended or revoked.

What is "Reasonable Grounds"?

From the moment you are pulled over the police office will begin to build his or her case against you by:

Observations or as it is commonly called "indicia" of intoxication, such as the condition of your eyes (watery, glassy, bloodshot) the smell of an alcoholic beverage on your breath, and slurred speech.
Admissions, they will normally ask you if you have been drinking.
Field Sobriety Tests (FST) and next they will ask you to step out of your vehicle to perform several field sobriety exercises. They will then subjectively score your performance on those alleged tests/exercises and decide whether to arrest you.

In Missouri, bloodshot eyes, coupled with the odor of booze on the breath, has been found by some courts to constitute "reasonable grounds" for purposes of an administrative license suspension!

As far as order of alcoholic beverage even a single drink consumed recently before driving can Cause a "strong" odor of an alcoholic beverage on your breath.

It is a well known fact that most people's eyes are normally red or bloodshot due to lack of sleep, allergies, being around cigarette smoke (like in a bar), wearing contact lenses for too long a period or countless other reasons that have nothing to do with alcohol consumption. Many people have naturally occurring blood shot eye appearance.

Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) has spent millions of your tax dollars in an effort to establish a standardized set of field sobriety "tests" or "exercises" to assist the police in determining whether or not a driver is under the influence of alcohol. The three tests, which they have approved for use are:

The one leg stand
Walk and turn
Horizontal Gaze Nystagmus

In the one leg stand exercise, you will be asked to hold one foot, six inches off the ground in front of you, keeping both arms down to your sides, and to count out loud from 1001- 1030. The police are then supposed to demonstrate the test, give you proper instructions and then score whether or not you start before they tell you to, sway while balancing, use your arms for balance, hop, or put your foot down. If you miss on any two grading points, you fail. If you put your foot down three or more times, you fail.

In the walk and turn exercise, the driver- is asked to stand with his feet together, hands down at the sides, and then take 9 steps heal to toe, pivot, and return 9 steps, while counting each step out loud. The police are supposed to demonstrate this test and give proper instructions, then score you on whether or not you sway while listening to instructions, start before the instructions are completed, stop while walking, don't touch your heal to toe, step off line, use your arms for balance, lose balance while turning, or take the incorrect number of steps. A miss on any two grading points is a fail. Stepping off the line three or more times is a fail.

In the Horizontal Gaze Nystagmus test, the police ask the suspect to follow some object called a stimulus (finger, ink- pen, pen light) held 12 to 15 Inches in front of the suspect's nose (slightly above eye level) as the object is passed from side to side in front of the suspect's face. The police are looking to see if your eyes "jerk" as they move from side to side. According to NHTSA, the officer is supposed to look for this "jerking" movement prior to each eye reaching an angle of 45 degrees from the center. In addition, they are looking for jerking when the eyes are moved as far right and left as possible. Finally, they are looking for the suspect's inability to smoothly pursue the object with each eye. A score of four points out of six is failing.

The problem is that the police in this state are generally not NHTSA trained and certified in conducting these exercises. The average police officer learned about the exercises/tests at the police academy and has had no training since.

The result is that the required testing conditions and scoring procedures are never learned, or they are forgotten or modified. For example, most police officers do not know that you do not need to actually touch your heel to your toe on the walk and turn test in order to pass the test. According to NHTSA, a gap of 1/2" or less should not be scored as a miss.

NHTSA also requires that the suspect walk on a real fine or at least parallel to a curb, yet in nearly every case the police toll me they told my client to walk an 'imaginary" line, In addition, the arms do not have to touch the side of the body, but can be as much as six inches from the side.

The one leg stand and walk and turn exercises must be given on a hard, dry, non-slippery surface, with adequate lighting yet I have had police officers admit they gave the tests on snow and ice and then failed my client because they couldn't walk the imaginary line. I had one client tell me that he performed these exercises on a flooded roadway when the client's feet were submerged under 2 inches of water.

NHTSA says the tests should not be given to people over the age of 60 or more than 50 pounds over weight, because these people generally cannot perform the walk and turn or one leg, stand tests under any circumstances. This happens all the time. I've also had clients complain that they had to attempt these exercises in 2 or 3 inch high heals, even though NHTSA says they should take them off. This can cause further problems if there is debris on the ground where the subject is performing the exercises.

The police have also been known to create their own tests, such as having the subject recite the alphabet backwards, starting from the letter M, and then fail the client because he could not do it right. Most people can not do it completely sober.

In some states, the police are required to videotape the field sobriety tests or the results are not admissible in evidence at trial. Very few St. Louis Metropolitan Police agencies utilize video taped stops and few video tape the FST.

Finally, even when properly administered under ideal conditions, the NHTSA field sobriety exercises are not very accurate predictors of intoxication. According to NHTSA's own studies, the HGN test is incorrectly scored by police officers nearly 25% of the time: the walk and turn test is incorrectly scored 32% of the time; and the one leg stand is incorrectly scored 35% of the time.

In addition, nystagmus is produced by nearly 50 prescription medications and naturally occurs within 4-5 % of the population.

Right to 20 Minutes to Contact an Attorney for Advice

After you are arrested, you will normally be taken to the police station, where you will be asked to take a breath test. In some cities, a blood alcohol testing mobile unit sometimes called a (BATMOBILE) will be dispatched to your location. The police must inform you of the consequences of refusing the test (Missouri Implied Consent Warning), and if you request it, you must be allowed 20 minutes in which to contact an attorney for advice. You must ask! Know your rights! Call Lawrence E. Wines on our after hours number 1-636-262-3792.

Should You Take the Breath Test?

The answer is that an attorney cannot and should not give general advice on, this subject needs to be address with more information. The answer will depend upon your specific circumstances at the time. Many attorneys that practice in this area list their home phone numbers, I can be reached on an after hours line.

Right to a Second Test at Your Own Expense

If you take a breath test at the request of a police officer, and you are unhappy with the test results, under state law, you have the right to a second test done at your own expense. The problem is you are 'in custody and the police will be less than cooperative about releasing you or transporting you to a hospital. If you know a doctor or a nurse, however who is willing to come to the police station and take a sample of your blood, the police must allow them to do so, The blood can then be tested at a later time by a toxicologist or at a commercial laboratory to determine alcoholic content.

15 Minute Observation Period

Missouri's Department of Health regulations on blood and breath testing provide that the subject should be "observed for at least 15 minutes" before giving any breath alcohol test. The only guidance the regulations provide is that "No smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period. "

The purpose of an observation period is to make sure that the suspect does not contaminate the breath sample. Missouri's regulations are wholly deficient in this area (as they are in every other area) and do not require the police to observe you carefully to make sure that you do not regurgitate, belch, or burp up alcohol from your stomach, all of which can adversely affect the breath test result.

In many instances, the arresting officer conducts the "observation" while he is driving you to jail and while you are in the back seat of the patrol car. If you are having stomach problems prior to or during the breath test, I strongly urge you to inform the officer of the fact and insist that he write that down in his arrest report.

The Breath Test

Missouri uses breath analyzer machines to measure the amount of alcohol in a person's system. These machines operate on the principal of absorption of infrared energy. Ethyl alcohol absorbs infrared energy with wavelengths in the 4-micron range.

The amount of alcohol present in your breath sample is determined by measuring the amount of infrared energy absorbed by the alcohol molecules in the sample. The suspect's breath sample is captured in a special sample chamber contained within the machine. The volume of the sample chamber is about 50 cc.

A source lamp emits infrared energy (light) which passes through the breath sample. A detector is used to determine the- amount of infrared energy absorbed. One problem is that numerous other compounds which may be present on the human breath also absorb infrared energy in the same infrared wavelength.

The result is that the machine may mistakenly believe that it is measuring alcohol when it is really measuring some other substance. If you happen to be exposed to paint thinners, solvents, or numerous other chemicals on a daily basis, you may go to jail and lose your license whether you are drunk or not.

Another problem involves the fact that the machine is designed to test persons having a 2100/1 blood-breath ratio. Such ratios in fact vary from 1100/1 to 3200/1 and the variance can produce erroneous test results. High readings are produced in 14% of the population. Are you one of those 14%? I hope you don't need your driver's license.

In addition, in many states, "dual testing" has been required by the state legislature or mandated by the courts. In Missouri, the only concern is with getting drunk drivers off the road, not with insuring an accurate result. How many times do you balance your check book, check you tax return, do you run the numbers once? No. You check them twice to make sure that you or the calculator didn't make a mistake,

Under the current Department of Health (DOH) regulations, the police only need to do a calibration or accuracy check of the breath test machine every 35 days. The calibration check is done by pouring a 500 Nfl bottle of simulator solution (supposedly containing a known quantity of alcohol and water) into a simulator jar, heating the solution to a required temperature, and then having the machine measure the amount of alcohol contained in the solution vapor. The procedure is designed to simulate the conditions present when a human subject blows into the machine. 'This method is not good quality science.

Second, body temperatures vary, affecting test results not every one has a body temperature of 34 degrees centigrade. So if you have a fewer with an elevated temperature when you take the test, your test results may be increased by as much a I 0% or more, The same is the case of individuals who suffer from low blood pressure and consequently lower body temperatures.

Third, even though the manufacturers acknowledge that the "most critical link in the simulation process is the simulator," the Missouri Department of Health hasn't bothered to adopt any regulations regarding the calibration, maintenance and cleaning of the simulator and its component parts,

Fourth, the DOH is approving the purchase and use of simulator solutions from out of state manufacturers and suppliers whose facilities it has never visited or inspected. DOH has not adopted any standards, for the manufacture or testing of simulator solutions. DOH does not require the suppliers to furnish scientifically valid supporting documentation attesting to the accuracy of the solution, and Department of Health's own method to test the simulator solution lacks scientific validity. In short, it is a joke!

In the not too distant past the State of Pennsylvania learned the hard way about not checking out its simulator solution suppliers. In that case, it turned out that the simulator solution was being whipped up in the back room of an electronics retail store using vodka and tap water. As a result, the integrity of the entire breathalyzer program in that state was undermined, numerous people lost their licenses who shouldn't have, and innocent people were sent to jail! While I have no information at this point regarding the accuracy (or lack thereof) of its simulator solutions, the Missouri DOH has approved the purchase and use of simulator solutions from PEPCO MARKETING INC. In checking the company's corporate records, it appears that Repco war originally incorporated as The Leather Bottle, a restaurant and lounge in the State of North Carolina. While the name of the corporation was subsequently changed, the specifically stated purpose and the ownership did not. In addition, this company's charter was forfeited in North Carolina for more than four years, yet it continued to supply simulator solution to the State of Missouri during that time.

Finally, testing the machine for accuracy only every 35 days is ridiculous. The machine should be checked for accuracy both before and after every breath test. That would be good solid stance!

Administrative Hearings

If you take a breath test and your test result is - 08% or above (. 02 if you are under 2 1), the police officer will take your driver's license and give you a temporary license and a hearing request form. The hearing request form must be completed, mailed and postmarked within 15 days of your arrest.

It is highly recommended that you mail duplicate requests or send the request by certified mail, return receipt requested. Always keep your postage receipt and a copy of your completed request form.

I also suggest that you FAX your request for hearing at the same time. If the police officer did not take your Missouri license, you must mail it in with the hearing request. You will then be notified of the date, time and location of your hearing.

The sole issues at the hearing will be whether there was probable cause to believe you were driving a motor vehicle while in an intoxicated condition and whether your blood alcohol content was unlawful. If you are a minor, and your blood alcohol content was below 08%, the lawfulness of your initial stop will be an issue in the case as well.

The hearing is conducted by an employee-attorney of the General Counsel's office of the Director of Revenue, who serves as investigator, prosecutor, judge, and jury all in one. Normally, the hearing examiner makes his decision based upon the things the police wrote down in arrest report, and the police officer's attendance at the hearings is not required. Many times, the driver will appear at the hearing and testify about what happened. Usually, the hearing is tape recorded by the hearing officer.

The problem is that once the administrative hearing officer rules against you, your license suspension or revocation will go into effect. While you have the right to file, an appeal of the decision to the circuit court in the county of your arrest, and to have a trial before a fair and impartial judge, the legislature has prohibited the courts from staying the suspension or revocation pending the outcome of that trial. Normally, you will have already served all or part of your suspension before your case gets to trial.

Trial De Novo

In order to contest the decision of the hearing examiner, you must file an appeal in the circuit court of your arrest within 15 days of the date the hearing examiner mailed his decision to you. The issues are the same, and the Director of Revenue has the burden of proof .

At the trial de novo, the Director of Revenue will be represented by an attorney who works in the General Consul's office. (Yes, the same office where the hearing examiner works). The issues are the same as in the administrative hearing, and the Director has the burden of proof.

Most of the time, the Director will subpoena the police officer that arrested you, and he or she will be the first witness to testify. The driver's attorney then has the opportunity to cross examine the arresting officer under oath, so that important issues can be reviewed before the criminal (DWI) is dealt with. The director will then offer your breath test result into evidence, either through the officer who gave you the test or by offering certified copies of the records into evidence under one of two statutory provisions. The driver then has the opportunity to testify and to call witnesses to testify on his or her behalf. You should always consult with an attorney before giving testimony in either the administrative hearing or trial de novo.

The court of appeals has determined that the Director does not need to call any witnesses at trial and m offer a certified copy of the entire arrest report into evidence under RSMO. 302.'A 12. The report is "certified" by a "custodian of records" who is usually nothing more than a legal secretary at the General Counsel's office.

Once offered, the driver then has to prove by a preponderance of the evidence that there was not sufficient evidence to support the arrest and that the breath test result was inaccurate, a difficult task when the courts seem to be giving presumptive validity to the police officer's report.

Civil Penalties for Testing Over the Legal Limit

If you have not had any previous alcohol-related convictions or suspensions in the five year period preceding your current arrest, the suspension period will be 30 days, during which you are not allowed to drive at all, followed by a 60 day period when you may drive only in connection with your occupation or employment. If you have a previous DWI or BAC conviction, administrative alcohol suspension or chemical refusal on your driving record within the past five years, the revocation period will be for one year and you will not be eligible for a hardship -privilege for the entire period of your suspension 30 days or one year.

Consequences for Refusing the Breath or Blood Test

After you have been arrested, the officer must advise you that: (a) your refusal to submit to a test may be used against you in a criminal prosecution-, and (b) that your license will be immediately revoked for one year if you refuse. If you then refuse the test, the officer will serve you with a refusal notice. You then have 30 days from the date of your arrest to file a petition for review in the circuit court of the county of your arrest, although the revocation will go into effect after 15 days unless otherwise stayed. The circuit court can and normally will grant a stay order pending a trial before a traffic court commissioner or judge in a refusal case, depending on your driving history.

As is the case with a trial de novo, the arresting officer may appear in person and testify against you. The issues are whether or not there was probable cause to believe that you were operating a motor vehicle while in an intoxicated condition; whether you were arrested; and whether your were informed of your Implied Consent warnings and then refused to take the breath or blood test. Again, the Director has the burden of proof on all issues.

There are a number of problems in this area. First, sometimes the implied consent warnings are not read by the police to the suspect, though they may subsequently swear under oath that they did so. This problem could be greatly reduced by requiring that the suspect be read and the Implied Consent warnings or by video taping the living, of the Implied Consent Wan3ings and the breath testing procedure.

Nearly every department in the state presently has the equipment to videotape the testing procedures inside the jail, but choose not to do so. Again, the use of video cameras would greatly increase the likelihood of a conviction and reduce the possibility of police abuse.

Second, people with asthma or low lung capacity may have great difficult providing an adequate breath sample to the breath analyzer machine. When no reading is forthcoming, the police may mistakenly or intentionally blame this on you and consider this a refusal.

You can be arrested because you have beer smell on your breath, red eyes, and couldn't recite the alphabet backwards, is going to be indignant about the arrest and not trust the cop to fairly administer the breath test. This happens all the time.

If you have not previously refused a breath test, and you are otherwise eligible, you may be able to obtain a hardship driving privilege to drive to and from your place of employment only after you have served the first 90 days of your revocation.

This is true even if you have had a previous alcohol conviction or administrative suspension within the previous five years. In other words, if this is your second arrest within five years, and you have a previous administrative suspension or alcohol conviction (but not a refusal) on your record, if you take the test and fail, you will be revoked for a year and you will not be eligible for a hardship driving privilege.

If you refuse the test, you will be revoked for a year but you may be eligible for a hardship privilege after 90 days. Again you should call me or another attorney for advice in your particular case.

5 and 10 Year License Denials

Any person who receives two convictions for driving while intoxicated in a five-year period will have their license revoked and they are not eligible for reinstatement for- a period of five years.

Any person who receives three or more convictions for any combination of DWI or BAC (operating a motor vehicle with a blood alcohol content of. ID% or more) within a life time will have their license revoked and they are not eligible for the return of the license for a minimum of 10 years.

On a five-year denial, the driver may apply for a hardship privilege after two years, provided that neither of the convictions were felonies, and provided that the driver is not otherwise ineligible because if having twice refused the breath or blood test, etc. On a ten-year denial, the driver may apply for a hardship privilege after three years, with the same exceptions as above. The applicant must be otherwise eligible so if you have two refusals or a driving related felony, forget getting a hardship under current law.

Points for Alcohol-Related Traffic Convictions

A conviction for a first offense DWI or BAC will result in the imposition of 8 penalty points, and 12 points if you have prior convictions regardless of how old. Any felony conviction resulting from the use of a motor vehicle (manslaughter, vehicular assault) will result in the imposition of 12 penalty points. A 30-day suspension followed by a 60- day period of restricted driving privileges will result from a first DWI or BAC conviction. A one year revocation will result from a felony conviction ansuag out of the operation of the motor vehicle or for a second conviction for a DWI or BAC.

Criminal Penalties for DWI

For a first violation of state law for driving while intoxicated, or for operating a motor vehicle with excessive BAC, the range of punishment is up to 6 months in jail, a $500.00 fine or both. A second conviction under state law within a 5 year period for either a DWI or BAC is a class A misdemeanor and is punishable by up to I year in jail, a $1,000 fine or both. A third conviction for BAC or DWI within a 10 year period is a class D felony and is punishable by up to 5 years in prison, a $5,000 fine or both. Felony assault with a motor vehicle is a class C felony and carries a range of punishment of up to '7 years in prison, a $5,000 fine or both. Involuntary manslaughter is a class C felony and carries a range of punishment of up to 7 years in prison, a $5,000 fine or both. Also any DWI or BAC charge following a manslaughter, or vehicular assault even if it is a first time DWI or BAC charge can be made a Class D Felony, just ask RAMS Pro-Bowl Defensive End Leonard Little.

Under Age Drivers

Under Missouri's Abuse and Lose Law, a court, upon a plea of guilty, conviction or finding of guilt, or, if the court is a juvenile court upon a finding of fact that the offense was committed by a juvenile, shall enter an order suspending or revoking the driving privileges of any person determined to have committed one of the following offenses and who, at the time said offense, was committed, was under twenty-one years of age:

(1) Any alcohol related traffic offense (i.e., DWI, BAC, vehicular manslaughter or vehicular assault).

(2) Any offense involving the possession or- use of alcohol, committed while operating a motor vehicle (e-g., a minor who is pulled over for speeding and who is subsequently found to be in possession of beer or wine and who pleads guilty to possession would fall within this provision of the Abuse and Lose law),

(3) Any offense involving the possession or use of a controlled substance
(e.g., a minor who pleads guilty to possession of marijuana, whether or not he or she was found to have possession while operating a motor vehicle.

(4) Any offense involving the alteration, modification or misrepresentation of a license to operate a motor viewed in violation of state law.;

(5) Any offense involving the possession or use of alcohol for a second time; except that a determination of guilt or its equivalent shall have been made for the first offense and both offenses shall have been committed by the person when the person was under eighteen years of age.

The period of suspension for a first offence under the Abuse and Lose law is ninety days. Any second or subsequent offense under this section shall result in revocation of the offender's driving privileges for one year.

In the case of a county or municipal ordinance violation before the Abuse and Lose provisions will be applied, the judge in the case must be an attorney and the defendant must be represented by or waive the right to an attorney in writing.

As in the ease of an adult drivers a minor's license may be suspended or revoked in the case of a refusal unlawful blood alcohol content (.08% or above), or for unlawful point accumulation resulting from an intoxicated-related traffic conviction.

In addition, if a minor (under age 21) is stopped upon probable cause to believe he or she violated a state, county or municipal traffic, offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight, in the case of a first offense, the suspension period is 30 days, followed by a period of 60 days of restricted driving. In the case of a second or subsequent offense, there will be a one-year revocation.

Any license suspension imposed under the Abuse and Lose law is in addition to any other suspension or revocation arising out of a refusal, point assessment or administrative determination of an unlawful blood alcohol content (either .02% or .08% or above).

Mandatory Education and Counseling Programs

As a condition of probation in any DWI or BAC case, the judge is required to order the driver to complete the Substance Abuse Traffic Offender Program (SATOP), The driver is also required under state law to complete the program as a condition of the return of the driver's license at the and of a suspension or revocation period. The program consists of three levels:

The first being a simple offender education class or program (OEP). This program is generally reserved for first time offenders whose SAC reading was. 1 7 or less, The cost of this program is approximately $200.00, consists of Io hours of education conducted in a classroom setting, and can be completed on a weekend or during two or three evenings.
The second level program is called the Weekend Intervention Program (WIP). In this program, the driver spends 48 consecutive hours in a restrictive environment during which time the offender is involved in approximately thirty hours of intensive educational intervention. The cost of this program is about $400.00.
Finally, the third level is called the Clinical Intervention Program (CIP) and involves approximately 50 hours of outpatient treatment and counseling with a licensed professional. The cost this program is around $600.00, and will take a period of several weeks to complete. The program includes both individual and group education and counseling.

Insurance (SR-22) Requirements

In order to reinstate your license after an administrative DWI suspension or revocation, or a point suspension or revocation resulting from a alcohol-related traffic conviction, the offender is required to maintain an SR-22 filing with the state for a period of two years from the effective date of the suspension.

Vehicle Ignition Interlock Devices

If you plead guilty to or are found guilty of a first offense DWI or BAC, the court may order you to install an ignition interlock on your car as a condition of probation. You must blow into this device to start your car and periodically while driving. If the device detects alcohol on your breath, the Car will not start, a record of that fact will be made, and the judge will be notified.

If you plead guilty to or are found guilty of a second or subsequent DWI or BAC, the judge must order you to install the device on your vehicle, with certain limited exceptions. The cost of installation ranges from $50 to $100, and you will have to pay $50 to $75 per month for the privilege of having the device on your car. If your probation period is two years, this will result in substantial costs to you.